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Contempt of Congress vs. Executive Privilege

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I understand that the Supreme Court ruled that an element of the separation of powers doctrine Executive privilege gives power to resist certain subpoenas and other interventions by the legislative and judicial branches of government.


"Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings." - Chief Justice Burger, writing for the majority in US v. Nixon





Operation Fast and Furious is the largest "gunwalking" probe, whereby in 2009 the The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) knowingly allowed the to the sale of over 2,000 firearms to be bought by suspected arms traffickers ("gunrunners") working through straw purchasers on behalf of Mexican drug cartels. Only 567 of the guns were recovered in the operation. As of October 2011, firearms found at about 170 crime scenes in Mexico were linked to Fast and Furious.




The "gun-walking" strategy was actually started by the Bush administration. A briefing paper prepared for Attorney General Michael Mukasey in 2007 outlined failed attempts by federal agents to track illicitly purchased guns across the border into Mexico and stressed the need for U.S. and Mexican law enforcement officials to work together on the first-ever attempt to have a controlled delivery of weapons being smuggled into Mexico by a major arms trafficker.


On May 3, 2011 Attorney General Holder testified to the House Judiciary Committee that he did not know who approved Fast and Furious, but that it was being investigated. He also stated that he "probably heard about Fast and Furious for the first time over the last few weeks," a claim which would later become controversial. In October, documents were found showing that Attorney General Holder had been sent briefings on Fast and Furious as early as July 2010, contradicting his May statement that he had known about it for only a few weeks. The briefings were from the National Drug Intelligence Center and Assistant Attorney General Lanny Breuer. In response, the Justice Department stated that Holder misunderstood the question from the committee; he had known about Fast and Furious, but he didn't know the details of the tactics being used.


On June 20th, the Oversight Committee met to consider a resolution to hold Attorney General Eric Holder in contempt of Congress for his failure to produce subpoenaed documents related to Operation Fast & Furious. The resolution was passed with a recorded vote of 23 (Republican) yeas to 17 nays (Democrat). The contempt resolution now goes to the full House of Representatives for a vote. It is now up to Speaker Boehner on whether to bring this contempt citation to the floor.



Earlier that day, President Barack Obama asserted Executive privilege to withhold documents related to the investigation. My question is not whether the political motivation of what is being done to Attorney General Holder is right or wrong, but rather how can the President issue an executive privilege over narrow subset of documents that remain at issue if there was no White House involvement and does not threaten public interest? President Obama promised to be the most transparent in history. House Oversight and Government Reform Committee Chairman Darrell Issa issued the following statement on the POTUS use of Executive privilege:


The President’s assertion of Executive Privilege this morning took us by surprise but did not alter the Committee’s conclusion that documents had been inappropriately withheld. Executive Privilege only applies to materials that directly pertain to communications with the President and his senior advisors. This assertion indicates that the White House’s role in Operation Fast and Furious and the response to whistleblower accusations has been greater than previously acknowledged. Just yesterday, the Attorney General indicated a willingness to produce a small subset of documents on the condition that the Committee end its investigation before they were described or made available for review. Today, the President asserted Executive Privilege to ensure they are never produced.


It should be noted that the Bush administration used Executive privilege six times during his presidency. Two big ones were blocked investigations of Karl Rove and Vice President Cheney.


That is why in July 2007 then Senator Obama:


Understanding that you were a constitutional law professor and respect our Constitution. What is your opinion of being in Contempt of Congress when Executive privilege used?




This was the response I received.


By vwcat Jul 27th 2007 at 12:24 am EDT

Obama was a constitutional law professor.

Seeing that he taught and understands and respects the constitution I don't think any of us have anything to worry about if he becomes president.


For me personally, I fear Executive privilege is quickly unbalancing the separation of power in our branches of government. It needs to be better defined.

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